The Creation of the Bill of Rights: “Retouching the Canvas”

This lesson will focus on the arguments either for or against the addition of a Bill of Rights between 1787 and 1789. By examining the views of prominent Americans in original documents, students will see that the issue at the heart of the debate was whether a Bill of Rights was necessary to secure and fulfill the objects of the American Revolution and the principles of the Declaration of Independence. Students will also gain an understanding of the origins of the Bill of Rights and how it came to be part of what Thomas Jefferson called "the American mind," as well as a greater awareness of the difficulties that proponents had to overcome in order to add the first ten Amendments to the Constitution.

When the Constitutional Convention completed its work in September of 1787, the document submitted to the people for ratification did not include a bill of rights. The lack of an enumeration of reserved rights and powers proved to be a source of great debate between Americans, who had long been accustomed to the idea that such declarations were essential to protect the liberties of the people against the abuses of government.

In the state ratification debates that followed the Convention, Federalists (who supported the proposed Constitution) and Anti-federalists (who opposed it) offered their arguments for or against the addition of a bill of rights to the Constitution. Federalists generally believed that a bill of rights was unnecessary, if not dangerous to the liberties of the people. Anti-federalists, on the other hand, launched vociferous objections to the Constitution, claiming that without a declaration of reserved rights, no people could long remain free, even under a well-constructed system of government established with good intentions.

Thomas Jefferson, although not an Anti-federalist, believed that a bill of rights was necessary to "retouch the canvas" of the proposed Constitution, thus creating a system of government that would best fulfill the principles of the Declaration of Independence, which states that the first object of good government is to secure the rights of its citizens. James Madison, one of the chief authors of the Constitution, eventually agreed that a Bill of Rights should be added, although for reasons different from those of Jefferson. Madison understood that such an addition would build confidence among the people in their new government, and allay their fears that, without a bill of rights, all that Americans had fought for during the Revolution – limited self-government, equality and liberty – would be jeopardized.

Guiding Questions

Was a Bill of Rights necessary to secure the principles of the American Revolution and complete the work of the Constitutional Convention?

Learning Objectives

Identify the origins of the idea of a Bill of Rights.

Articulate the key similarities and differences between the English Bill of Rights and the declarations of rights contained in the original state constitutions.

Understand how the American idea of a bill of rights was influenced by the principles of the Declaration of Independence.

History & Social Studies

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Lesson Plan Author:

Christopher Burkett & Patricia Dillon

10/17/11

Lesson Plan Details

Background

In the summer of 1787, as the delegates to the Constitutional Convention debated how to establish a system of government that would secure the rights of citizens better than that under the Articles of Confederation, very little time was devoted to discuss the inclusion of a declaration of rights in the new Constitution. On August 20th, Charles Pinckney had proposed the inclusion of a brief list of protections, such as freedom of the press, no quartering of troops, and no religious tests or qualifications for holding office; but only the last of these was adopted by the Convention. On September 12th and 14th, the Convention formally rejected George Mason’s proposal to draw up a bill of rights, because, in the words of Roger Sherman, "It is unnecessary." The omission of a declaration of rights was a major reason that three delegates – George Mason, Elbridge Gerry, and Edmund Randolph – refused to sign the Constitution at the end of the Convention. Their opposition would carry over into the public eye during the ratification debates over the Constitution in 1787 and 1788.

Dangerous Signal?

The absence of a bill of rights at the beginning of the proposed constitution was a dangerous signal to many Americans, who had come to believe that such declarations were essential to mark out the limits of government power and protect the liberties of citizens from tyranny. Americans before the Revolution had been familiar with the English Bill of Rights of 1689, which listed the rights of subjects against the crown, including no standing armies, freedom of speech in Parliament, no excessive bail or cruel and unusual punishments, and the right to jury trial. After declaring independence from Great Britain in 1776, the people of the American states wrote their own constitutions, every one of which included the protection of certain liberties, either in the body of the text itself, or listed in the form of a "bill" at the beginning or preamble.

Different from the English Bill of Rights

But the American declarations of rights were significantly different from the English Bill of Rights in two key ways. First, the English Bill of Rights was meant to limit the power of the crown, and most of the rights protected pertained only to Parliament rather than individual subjects. The American declarations of rights, however, were meant to protect the liberties of private citizens against the abuse of power by government in general. As James Madison stated in the First Congress (June 8, 1789), "In the declaration of rights which that country [Great Britain] has established, the truth is, they have gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite." In America, Madison continues, it is not so much the executive as the legislative power that must be checked, "for it is the most powerful, and most likely to be abused, because it is under the least control."

The second major difference was that the English Bill of Rights protected rights that were thought of as "privileges" or grants from the crown; in other words, subjects had inherited their rights as gifts from English Kings (stretching back to Magna Charta in 1215). But in the United States, the Declaration of Independence expressed the belief of Americans that they, as human beings, had received their rights directly from God, and that these natural or "unalienable" rights – including the right to life, liberty and the pursuit of happiness – could not justly be taken away by any man or government.

Thus most state constitutions – for example Virginia in 1776 and Massachusetts in 1780 – preface their specific listing of rights with assertions of natural rights similar to that contained in the Declaration of Independence. The specific rights listed in these state declarations, although not strictly speaking "natural" or granted directly by God, are nonetheless believed to be essential for the better security of life, liberty and the right to pursue happiness. Many of the specific rights contained in the Virginia and Massachusetts Declarations – for example, the right to a speedy trial by jury, the right to confront witnesses, no self-incrimination, no excessive bail or fines, no cruel or unusual punishments, no general search warrants – would eventually be included in the first ten Amendments to the Federal Constitution, otherwise known as the Bill of Rights.

The Chief Objection to the Proposed Constitution

After the conclusion of the Convention in 1787, the men known as "Anti-federalists" took up this American expectation of a declaration of rights as their chief objection of the proposed Constitution. "Ought not a government," asked the Anti-federalist Brutus, "vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought." On the other side of the argument, most Federalists believed that a bill of rights was unnecessary because the new federal government would have only those powers that were listed in the Constitution – which did not include the power to infringe on certain essential rights of citizens, such as freedom of speech, the press, or religion.

Federalist James Wilson, for example, wrote that such declarations of rights were necessary to protect the liberties of the people against violations by their state governments, but were not necessary against a national government of limited and enumerated powers. Alexander Hamilton, writing as Publius in The Federalist No. 84, went even further and asserted that a bill of rights would be dangerous because every right not specifically reserved to the people might be assumed to have been given up, thus making it easier for government to infringe on the liberties of the people.

Anti-federalists Brutus and Centinel countered these claims by pointing out that the proposed constitution included the "supremacy clause," according to which the laws passed by Congress would be supreme over the laws and constitutions of the states, including their declarations of rights reserved to the people. "It is evident," wrote Centinel, "that the security of the personal rights of the people by the state constitutions is superseded and destroyed; hence results the necessity of such security being provided for by a bill of rights to be inserted in the new plan of federal government."

James Madison and Thomas Jefferson

As the Federalists and Anti-federalists continued their debates, the state ratifying conventions argued over whether to accept the proposed constitution without a bill of rights. Several of the states approved the Constitution with the expectation that amendments declaring the rights of the people and the states should be added as soon as possible after ratification. James Madison would eventually lead the fight in Congress for amending the Constitution to include a bill of rights, but he would first need to be persuaded of the need to do so, a task that fell to Thomas Jefferson.

In a series of letters between them, Jefferson argued that although a bill of rights might not absolutely secure the rights of the people, those rights would be better secured with such a declaration than without. "Half a loaf is better than no bread," Jefferson wrote. "If we cannot secure all our rights, let us secure what we can." Madison continued to maintain his position that a bill of rights was neither dangerous nor necessary, but believed that adding it would promote confidence among the people in their new government, and might induce the two remaining states – North Carolina and Rhode Island – to ratify the Constitution and rejoin the Union. After meeting strong resistance to adding a Bill of Rights from members of the First Congress in June of 1789, Madison's proposals were eventually accepted, and ten were finally ratified by the states in 1791 to become what we today call the Bill of Rights.

For more background information, the EDSITEment-reviewed resource "Charters of Freedom" at the National Archives Experience offers an interactive website that includes images and articles on the importance and creation of the Bill of Rights. The "Ratification of the Constitution" website at Teaching American History also offers useful texts and timelines of the Federalist and Anti-federalist debates, including their arguments regarding a bill of rights. Useful background information on the debates over the Bill of Rights can also be accessed at the Digital History website. Teachers might also find it useful to read Kenneth R. Bowling’s article "A Tub to the Whale: The Founding Fathers and Adoption of the Federal Bill of Rights." The article goes into great detail exploring the arguments of both supporters and opponents of the Bill of Rights in the First Congress, and focuses on Madison’s motives for proposing and supporting the amendments even in the face of opposition from his fellow Federalists.

Teachers might also find this interactive map useful, which shows which amendments were approved by each state, as well as other information regarding the creation of the Bill of Rights.

Preparation

Review the lesson plans. Locate and bookmark suggested materials and links from EDSITEment-reviewed websites used in this lesson. Download and print out selected documents and duplicate copies as necessary for student viewing. Alternatively, excerpted versions of these documents are available in the PDF containing Activity 1. The file contains excerpted versions of the documents used in the activity, as well as questions for students to answer. Print out and make an appropriate number of copies of the handouts you plan to use in class. Teachers can also use the interactive map which shows the amendments that were ratified by each state, and provides other useful information regarding the creation of the Bill of Rights.

Lesson Activities

Activity 1. Historical Origins of the Bill of Rights

Print copies (or provide links) for students of the documents and analysis questions assigned for homework and class discussion listed below.

This activity is designed to give students a better understanding of the origins of the Bill of Rights by showing the similarities and differences between the English Bill of Rights and the American state constitutions. Students should also see how the understanding of natural rights, as expressed in the Declaration of Independence, influenced the American understanding of the nature and purpose of a bill of rights. Students will also see how the rights included in the state constitutions influenced the rights contained in Amendments I-X to the U.S. Constitution.

2. Assign one of the following activities (and the corresponding worksheet) to each group. Activity worksheets, as well as answer keys for teachers, are available on pages 6-19 of the worksheet PDF. The instructions for each group are as follows:

Group #1: Read the English Bill of Rights (1689) and the Declaration of Independence (1776). According to the Declaration of Independence, which of the rights protected in the English Bill of Rights have been violated by the King of England against Americans? List them on the worksheet.

Group #2: Read the Declaration of Independence (1776), The Virginia Declaration of Rights (1776), and the Massachusetts Declaration of Rights (1780). Which of the rights listed in the Virginia and Massachusetts documents are intended to help protect the natural or "unalienable" rights of life, liberty and the pursuit of happiness? List them in the worksheet (Note: some rights listed in the state declarations might protect more than one natural right; also the right to keep and use property was thought to be an essential right in order to freely pursue happiness).

Group #3: Read the excerpt from James Madison's speech during Debates in the First Congress, describing the similarities and differences between the English Bill of Rights and the American state declarations of rights. Then re-read the English Bill of Rights (1689), the Virginia Declaration of Rights (1776) and the Massachusetts Declaration of Rights (1780). In the worksheet, next to the right contained in the English Bill of Rights, list the right as it is described in the American state declarations. In the far right column, describe what, if anything, is different about the way the right is described in the English and American documents.

Group #4: Read the Virginia Declaration of Rights (1776), the Massachusetts Declaration of Rights (1780), and Amendments I-X of the Constitution (1791). In the worksheet identify where each of the rights listed in the Constitutional Amendments is located in the state declarations of rights.

On the day of the activity:

1. Have each group (1, 2, 3 and 4) meet to compare and discuss answers to the questions on their worksheet. Allow approximately 10 minutes for this discussion.

2. Combine groups 1 and 3 into new larger group "A," and make sure that each student has a copy of the worksheets for groups 1 and 3. Allow students to discuss answers and complete both worksheets. This will allow this group to have a broader understanding of the similarities and differences between the English Bill of Rights and the American understanding of a declaration of rights.

3. Combine groups 2 and 4 into new larger group "B," and make sure that each student has a copy of the worksheets for groups 2 and 4. Allow students to discuss answers and complete both worksheets. This will allow this group to have a broader understanding of the influence of the Declaration of Independence on the state declarations of rights, and of the influence of the state declarations on the U.S. Bill of Rights (Amendments I-X to the Constitution).

4. Allow groups A and B approximately 10 minutes to complete their answers, and to select one student to make a brief presentation to the entire class.

5. With the remainder of the class time, have one student from each group give a brief (5-10 minutes) summary of the information on their worksheets. The student from Group A should describe the similarities and differences between the English Bill of Rights, the Declaration of Independence, and the state declarations of rights (based on worksheets 1 and 3). The student from Group B should describe the connection between the Declaration of Independence and the rights listed in the state declarations, as well as the similarities between the state declarations and the U.S. Bill of Rights.

6. If time permits and teachers wish to extend this activity, they might allow the remainder of day one to be used to in preparation for a more detailed presentation from groups A and B on the following day.

7. Alternative approach to the activity: Rather than combining groups 1-4 into larger groups A and B, the teacher could begin the class by having each group meet and prepare an outline, based on their assigned readings, answering the question, "Was a bill of rights necessary to fulfill the goals of the American Revolution?" Each group could then present their arguments to the whole class.

Activity 2. Is a Bill of Rights necessary? The Federalist and Anti-federalist debates

Preparing for the activity:

Print copies (or provide links) for students of the documents and questions assigned for homework and in-class analysis (listed below, included on pages 1-8 in the Activity 2 worksheet).

The purpose of the activity is to provide students with an understanding of the debates between prominent Federalists and Anti-federalists over the need for a Bill of Rights in the proposed Constitution. On the one hand, Federalists believed that a bill of rights was unnecessary because the national government would possess only those powers granted to it in the text of the Constitution; on the other hand, Anti-federalists believed that the “sweeping clauses” of the Constitution – the Necessary and Proper clause, and the Supremacy clause – would allow the national government to nullify all state laws, including the declarations of rights in the state constitutions. Students will also gain an awareness of the intensity of the debates surrounding the Constitution, and see that the core of the debates was the question of whether the proposed Constitution would fulfill or defeat the purposes for which the Revolution had been fought. Note to teachers: Further discussion might be needed to familiarize students with the Necessary and Proper clause (also called the “sweeping clause” or the “general clause” in the readings) and the Supremacy clause. The clauses are at the end of Article I Section 8, and in the second paragraph of Article VI of the Constitution.

1. Have each group meet separately to discuss and compare answers on their assigned worksheets. Allow approximately ten minutes for discussion and preparation for the debate which will take place next.

2. The teacher should select 3-7 students (making sure it is an odd number) to act as impartial judges for the upcoming debate. The teacher (or a student selected by the teacher) should then initiate and guide a debate between the groups representing Federalist and Anti-federalist views on the bill of rights. Each group should get approximately five minutes to summarize its views to the class on why a bill of rights is necessary or not, and then the floor should be opened for questions and answers between the sides. At the end of the class period, the teacher should put the question (Should a bill of rights be added to the Constitution?) to the panel of judges, who will determine which side has the more powerful arguments.

3. After the student debate, the teacher could lead a brief discussion of the actual and very contentious debate over the need for a Bill of Rights, and emphasize the reasons why there as a need for an eventual compromise.

4. The lesson can be extended by having each student write a short paper (1-2 pages) on which arguments – those of the Federalists or Anti-federalists – are more persuasive.

5. If the teacher has chosen to create a presentation as discussed in the Suggested Activity, this lesson could be assigned to one group.

Activity 3. The Jefferson–Madison Correspondence

Print copies (or provide links) for students of the documents assigned for homework and in-class analysis (listed below, included on pages 1-3 in the activity worksheet PDF), as well as the worksheets for the readings (included on pages 4–5 in the activity worksheet PDF).

The purpose of the activity is to provide students with an understanding of the arguments that took place between Jefferson and Madison regarding the need for a Bill of Rights, and the different reasons for which both believed a bill of rights ought to be added to the Constitution. Madison, as a Federalist and as chief architect of the proposed Constitution, was inclined to believe that a bill of rights is unnecessary. Madison writes that the Constitution itself – the institutional arrangements of separation of powers and checks and balances, limited and enumerated powers of Congress, and the extended federal republic that the Constitution establishes – will secure rights better than any list on mere parchment. Like some of his fellow Federalists, Madison sees that any attempt to enumerate rights will necessarily limit those rights in scope. Jefferson – also a Federalist – on the other hand believes that a bill of rights will provide further safeguards for liberties in the event that the constitutional separation of powers breaks down and government violates the rights of citizens. Even if it is impossible to enumerate every reserved right of the people, Jefferson writes, "Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can." "Let me add," Jefferson, "that a bill of rights is what the people are entitled to against every government on earth … & what no just government should refuse." In the end, Madison maintains his position that a bill of rights is not necessary to make the Constitution safe for the rights of citizens, but agrees that it might have certain practical benefits, such as reminding Americans over time of their rights, and serving as a standard by which to measure infractions against rights by the government.

On the day before the activity:

1. For homework, have all students read the documents for supplemental activity two and assign the corresponding worksheet (available on pages 4–5 of the worksheet PDF). These documents are available in their entirety at the EDSITEment-reviewed Teaching American History, and in excerpted form on pages 1–3 of the worksheet PDF:

Split the class into smaller groups and allow students to compare and discuss answers for approximately 10-15 minutes.

With the remainder of class time, the teacher should initiate and lead class discussion over the different pros and cons expressed by Jefferson and Madison, listing them on the board or overhead in two separate columns. The teacher can broaden the scope of the discussion by raising the following questions:

Was Jefferson in favor of or against the proposed Constitution?

What view of Federalist James Wilson does Jefferson especially criticize? Why?

Does Madison agree or disagree with his fellow Federalists' views that a bill of rights is unnecessary and dangerous?

Is there any evidence that Madison changed his views regarding the necessity of a bill of rights, or did he remain constant in his views?

Does Madison agree with all of Jefferson's arguments? Which ones does he accept or reject?

What do you think was Madison’s main reason for "favoring" a bill of rights?

Whose arguments are stronger, Jefferson's or Madison's?

If the teacher has chosen to create a presentation as discussed in the Suggested Activity, this lesson could be assigned to one group.

Alternative approach to the activity: Teachers have the option of assigning the readings for homework, but not the worksheets, on the day before the activity. On the day of the activity, teachers could engage students in an impromptu debate over the question, "Was the Bill of Rights necessary to fulfill the goals of the American Revolution?" Teachers should instruct students to choose one of the assigned readings and identify their resource on an index card. Students should then write a statement from the point of view of their primary resource. Then divide the class into small groups (depending on the size of the class) and have each student copy the index cards of the other members. Each group will have many supporting examples on several index cards. The summary activity would be a round table debate/discussion with every student participating.

Activity 4. Madison's Proposals in the First Congress

Print copies (or provide links) for students of the documents assigned for homework and in-class analysis (listed below, included on pages 1-2 and 5-6 in the activity worksheet PDF), as well as the worksheets for the readings (included on pages 3-4 and 7 in the worksheet PDF).

The purpose of the activity is to provide students with an understanding of why James Madison eventually decided to champion the cause of a Bill of Rights in the First Congress, and to see the resistance with which his proposals were met by others in the House of Representatives. Many of his colleagues wanted to postpone the question of amendments for as much as a year, citing more urgent business having to do with the basic organization of the new government. As a result Madison not only had to defend the importance of adding a bill of rights, but the need to introduce it for discussion immediately. A continued postponement of debate on a bill of rights, Madison argued, would only increase suspicions on the part of the people and "inflame or prejudice the public mind" against the new government. A "very respectable number of our constituents," he pointed out, would willingly throw their support behind the new Constitution and government "if they were satisfied on this one point." Madison also argued that the adoption of a bill of rights will help to induce the two states who have yet to ratify the Constitution – North Carolina and Rhode Island – to rejoin the Union. Despite continued opposition by fellow Federalists such as Jackson – who argued that a bill of rights was unnecessary – Madison argued that under a government with enumerated but not perfectly defined powers, a Bill of Rights would prove to be an additional safeguard to liberty. It would, he continued, more perfectly define the rights guaranteed in the several state constitutions, and prove to be an "impenetrable bulwark against every assumption of power" by the national government in the event that such opportunities presented themselves. Of Madison's nineteen proposals for amendments, seventeen were eventually approved by the House, and twelve were approved by the Senate. Of these, ten were eventually ratified by the people of the states in 1791.

On the day before the activity:

1. Divide the class into two groups. Assign each group one of the following sets of documents and the corresponding worksheet (available on pages 3-4 and 7 of the worksheet PDF). These documents are available in their entirety at the EDSITEment reviewed Annals of Congress at the Library of Congress, and in excerpted form on pages 1-2 and 5-6 of the PDF:

Reading Set A: Madison meets resistance in the House of Representatives

1. Allow each group to meet for approximately 10 minutes to discuss and compare answers on the assigned worksheets.

2. Reshuffle the groups so there are equal number of students in each group who completed reading set and worksheets A and B, so that "experts" on each reading set can lead a discussion in the new groups. Give each student the other Reading Set (the one they were not assigned in their original group). Allow approximately 10-15 minutes for students to complete both worksheets, and prepare a brief presentation of their answers to the class.

3. During the remainder of the class, each group should present its answers to the entire class.

4. If the teacher has chosen to create a presentation as discussed in the Suggested Activity, this lesson could be assigned to one group.

Assessment

After completing this lesson, students should be able to write brief (1–2 paragraph) answers to the following questions:

What are the similarities between the English Bill of Rights and the Virginia and Massachusetts Declarations of Rights? What are the main differences between these documents?

What rights listed in the English Bill of Rights were violated by King George III, according to the Declaration of Independence?

How were the rights listed in the Virginia and Massachusetts Declarations of Rights meant to better secure the natural or "unalienable" rights in the Declaration of Independence?

What rights included in the English Bill of Rights, and the Virginia and Massachusetts Declarations of Rights ended up included in Amendments I–X to the U.S. Constitution?

Students should also be able to debate the themes addressed in this lesson, and write a longer (2–3 pages) essay answering the following question: Was a bill of rights necessary to fulfill the goals of the American Revolution?

Alternative Methods of Assessment:

Divide the class into small groups, and have each one develop a thesis statement that encompasses all the various elements of this lesson. They should be given roughly 15 minutes to do this. Once they have done so, each group should write its thesis statement on the board, and as a class discuss which is the best, and why. The entire class could then be given a homework assignment to write an essay that defends the statement.

Assign the above questions to student pairs (more than one pair will have the same question). Each pair should answer their question as a 1–3 slide media presentation. When complete, allow the pairs with the same questions to discuss and compile their answers; then work together to complete a single 1–3 slide presentation on the question. The four questions could then be used to create one presentation. (If you plan to extend the lesson with the supplemental activities, this could become the Introduction in a longer slide show. This could make an excellent presentation for Constitution Day.)

Write a Bill of Rights for colonists on Mars. If the U.S. created a colony, would the government have complete control? What rights should the colonists have? Work in small groups to create a Bill of Rights for the colonists.

Students should be able to identify and explain the significance of the following concepts:

English Bill of Rights

Natural or "unalienable" rights

State declarations of rights

Lesson Extensions

Teachers can extend or enhance this lesson by incorporating this interactive map into the classroom, which shows the amendments that were ratified by each state, and provides other useful information regarding the creation of the Bill of Rights. Teachers could use the map, for example, in class to illustrate how difficult it was to get the necessary number of states to agree to all of the proposed amendments. Teachers could also use the map to assign a timeline project to students, showing the order of events leading to the ratification of a particular amendment.